United States Court of Appeals For the Ninth Circuit

No. 698.

IN THE

United States Circuit Court of Appeals

FOR THE NINTH CIRCUIT.

WILLIAM WOLFF,

Plaintiff in Error,

We

WELLS, FARGO AND COMPANY, a CorporatTIon,
Defendant in Error.

Vieplp Grief for Defendant tn Error.

Bk. S. PILLSBURY,

ALFRED SUTRO,
Attorneys for Defendant in Error.

Filed this........ day of December, 1901.

IN THE

United States Circuit Court of Appeals

FOR THE

INN TEL CLERC UE:

WILLIAM WOLFF,
Plaintiff in Error,

Vv.
No. 698.

WELLS, FARGO AND COMPANY, a Corpora-

TION,
Defendant in Error.

Reply Gricf for Defendant in Error.

In our Opening Brief we have fully considered all the
specifications of errors assigned by the plaintiff in error.
By the judgment in this action the defendant in error
was awarded certain rights which it claimed under a
contract made between it and the plaintiff in error.
These rights would never have been questioned or denied
by the plaintiff in error, had not the article, which was
the subject of the contract, risen in price in the open

2

market before the full) quantity, agreed upon and
required by the defendant in error, had been delivered

by the plaintiff in error.

In the first place, we contended that, inasmuch as the
parties to this action stipulated that the same should
be tried by the court without a jury, they bound them-
sclyes to accept as conclusive the facts found by the trial
court. To this well settled rule the plaintiff in error seeks
to make the present case an exception. Te says (Reply
brief, p.2): ‘On both those occasions, as well as now, we
pointed|y maintained that there was no evidence to sus-
tain certain special findings * * *.° If it were true that
there was an entire absence of evidence to support cer-
tain special findings, as claimed, then this contention
would be sound. But, assuming that the letter of Septem-
ber 24th, 1897, is the only evidence to support these find-
Ings, Its very existence in the record is sufficient to en-
tirely overcome the statement that there is a complete
want of evidence. The cases of King v. Smith, 110 led. 95,
and Dooley v. Pease, 180 U. 8. 126, cited by plaintiff in
error, but reaflirm the rule that it is only when there is an
entire want of evidence upon which to base a fact, that
the tindings of the trial court will not be regarded as
COonCIUSIVe,
In King v. Smith, supra, this Honorable Court said:
“The tinding that the plaintiff in the action is the
owner and entitled to the possession of the property
described in the complaint is clearly a eeneral tind-
ing of the nitimate facts of ownership and right of

possession, and is conclusive here, unless there was
entire want of evidence upon which to base it.”

3

In Hathaway v. First Nat. B’k, 154 U. S. 494, the
Supreme Court said, at page 498:
“The first three assignments of error allege errors

merely in the findings of fact by the court. Those

errors are not subject to revision by this court, if
there was any evidence upon which such findings
could be made.”

It is now well settled that when parties stipulate to
try a case before the court without a jury, they bind
themselves to accept as conclusive the findings by the
court of the ultimate facts. In Dooley v. Pease, 180
U.S. 126, the Supreme Court said that, where a case is
tried by the court, a jury having been waived, its findings
upon questions of fact are conclusive in the courts of
review, it matters not how convincing the argument that
upon the evidence the findings should have been different.

The defendant in error believes that it is justified in
earnestly and respectfully urging the application to the
case at bar of the rule regarding the conclusive char-
acter of the findings of the ultimate facts. It is endeav-
oring to preserve certain rights secured to it under a
contract fairly and deliberately entered into between it
and the plaintiff in error. Of these rights the plaintiff
in error is seeking to deprive it by a strained and unwar-
ranted construction of the language of a writing, the
obligations of which he is trying to avoid, because to
have carried them out would have caused him a financial
loss—a construction, we may add, which is entirely

unsupported by precedent or authority.

4

We next contended in our Opening Brief that no error
was committed in the admission or rejection of certain
evidence. The questions of law presented by specitica-
tions of error 1,2.3,4,5, Gand 7, and which relate to the
evidence, we have endeavored to present in subdivisions
Hh, IV. Voand VEE of our Opening Brief. Plaintiff in
Troi his hepla Bitef (p. 2) says that lie will adepivour
statement, that the trial court did not regard as material
or relevant the testimony, which was objected to. On
puge 6 of the Reply Brief it is said: “* * * it inevit-
ably follows that the Court did not regard the previous
conversation as material or relevant to the matter in
hand. The Court, apparently, reached its own interpre-
tation by a process of reasoning based on the terms of
the writing alone” etc. If the objectionable evidence
was not considered by the Court below, then, we again
respectfully submit, as pointed out in subdivision VIT
of our Opening Brief, that the judgement should not be
reversed. Plaintiff in error argues that parol evidence
cannot be introduced to vary the terms of a written
iustrument. Reed v. Ins. Co. 95 U.S. 23, and thirteen
other cases, are cited in support of this contention. The
rule, however, has no application to the facts of the case
at bar. To our contention that the evidence of the con-
versation was properly admitted, because the writing
itself refers to the conversation, plaintiff im error has
made no reply. in support of this contention we cited
several cases on pages 4 and 5 of our Opening Brief.
Plaintiff in error has attempted to show that these cases
are inapplicable, by pointing out a distinction between

the facts of each case and those of the case at bir. In

5

each of the cases, however, the essential feature—the
reference to a conversation in a writing,—is present,
and for that reason each one of those cases is pertinent.
Moreover, they amply sustain the ruling of the trial
court. Godkin v. Monahan, $3 Ied. 116, cited on page
12 of the Reply Brief of plaintiff in error, and N. W, Fuel
Co. v. Bruns, 45 N. W. 669, and the other cases cited on
pages 14 and 15, merely reaffirm the rule that parol
evidence cannot vary the absolute terms of a written

contract.

So far as the letter of September 24th, 1897, is con-
cerned, plaintiff in error in his Reply Brief has not cited
a single authority in support of the construction which
he is seeking to give this letter. He says (Reply Brief,
p. 24): “We think the writing readily and fairly comes
under the second general rule of the Brawley case.” The
second general rule stated by Mr. Justice Bradley is as
follows:

“But when no such independent circumstances
are referred to, and the engagement is to furnish
goods of a certain quality or character to a certain
amount, the quantity specified is material, and
governs the contract. The addition of the qualify-
ing words ‘about,’ ‘more or less,” and the like, in
such cases, is only for the purpose of providing
against accidental variations arising from slight and
unimportant excesses or deficiencies in number,
measure or weight.”

Applying the test of this rule to the letter in the case
at bar, we find that the letter lacks the first vital and

essential feature to bring it within the conditions of the

6

rile. Independent circumstances are referred to in the
letter, and those independent circumstances are the con-
struction of a new building and the supply of the cement
that may be required therefor, The letter, therefore,
cannot be classed under the second geueral rile.

On the other hand, we contend that the cases of
Brawley v. United States, 96 U.S. 168, and Budge v.
United Smelting & Refining Co., 104 Fed. 498, and the
other cases cited by us under subdivision ITE of our
Opening Brief, conclusively establish that the letter of
September 24th, W977, was a contract to furnish as much
cement as the defendant tn error should require for use
in its building. The letter submits a quotation on Alsen’s
German Portland Cement for use in a new building then
in course of construction, It names a price for what may
be required, on about 5,000 barrels, more or less, of $2.56
per barrel, delivered at the building site. In the lan-
euage of this Tfonorable Court in the Budge case, the
contract was

“one of those in which the contracting parties had
in mind the construction of a particular work, and
the supply of the necessary material therefor, the
work itself furnishing to both parties the ultimate

measure of the quantity which the contract contem-
plated.”

as

The ease of the “miller” instanced by Mr, Justice
Bradley to iustrate the third general rule stated by him
in the Brawley case, and quoted by us on page 20 of our
Opening Brief, precisely covers the case at bar.

It is clear that the substantial engagement was to

furnish as much cement as should be required for use

7

in the new Wells, fargo and Company Building, and that
the quantity designated, 5,000 barrels, is to be regarded
nerely as an estimate of what, at the time, the plaintiff
in error supposed might be required. The argument
with reference to change of plans and bad faith on the
part of the defendant in error is, we respectfully submit,
entirely out of place. Had there been any change in the
plans or had the defendant been guilty of bad faith, the
plaintiff in error could, in his answer, have made sueh
change of plans and bad faith a special defense. But
there is not even a hint or a suggestion of either in the
entire record.

To the remarks of plaintiff in error that we have
pursued an “ obnoxious course * (Reply Brief, p. 16), we
deem it unnecessary to reply, because beyond the mere
veneral charge, no instance of our wrong-doing is cited.
But we do most earnestly and emphatically maintain
and respectfully submit and contend, that when a mer-
chant contracts to sell an article of merchandise at a
given figure, he will not be permitted to avoid the obliga-
tions of his contract because, before the contract is com-
pleted, the price of the article he has contracted to
deliver has risen in the market. As the learned judge
of the Court below, in delivering his opinion, very prop-
erly remarked:

“Mr. Wolff thought it would be profitable to
secure a contract to sell the cement required for
this building. The contract was made. He agreed
to deliver the cement, and to this he must be held.”

We earnestly and respectfully submit that the jude-
ment should be affirmed.

Eee VinLSs BURY,
ALFRED SUTRO,

Attorneys for Defendant in Error.

No. 698.

IN THE

UNITED STATES CIRCUIT COURT OF APPEALS

For THE NINTH CIRCUIT.

WILLIAM WOLFF,
Plaintiff in Error,
vs.

WELLS, FARGO & COMPANY (a cor-

poration),
Defendant in Error.

Reply Brief of Plaintiff in Error.

VOGELSANG & BRown,
Attorneys for Plaintiff in Error.

kK -. ae A
‘eqn SS

Pernau Bros. Print, 643 Gtey é

NOV J c 1901

IN THE

United States Circuit Court of Appeals

For THE Nintru CIRCUIT.

WILLIAM WOLFF,
Piatti sine pron,
vs.
WELLS, FARGO & COMPANY (a

corporation),

No. 698.

Defendant in Error.

REPLY BRIEF OF PLAINTIFF IN ERROR.

Upon the conclusion of the oral argument had in the
above entitled cause on October 29th, 1901, counsel for
plaintiff in error, obtained leave of this Court to file a
brief in reply herein.

Counsel for defendant in error have devoted the first
part of their brief toan examination of rules and author-
ities utterly inapplicable to the question of law, at this
time sought to be raised by the plaintiff in error, with
respect to the assignments leveling an attack at the
special findings and the judgment based thereon.
Neither in our opening brief, nor upon the oral argu- -

to

ment, did we pray this appellate Court to review the
character of the evidence, or to weigh the same. On
both those occasions, as well as now, we pointedly main-
tained that there was 2o evidence to sustain certain
special findings described in Specifications IX and X;
and that the Court erred in its conclusion of law from
them derived (trans. pp. 73-4, 77; op. br. pp. 8-9).

Obviously, this is altogether a different contention
from the one argued at length by opposing counsel;
and it will be considered on a writ of error in a case
tried to the Cireuit Court under a written stipulation
waiving ajury. The law was so announced by this
Court in the very recent case of Aen vs. Smith, 110
Ped):

Dooley vs. Pease, \80 U.S. 126.

As intimated by opposite counsel, we assume that
the Court below must find support for the obnoxious
findings, assigned as error, in the letter of September
24th, 1897. Now, our position is not only warranted
but sanctioned and sustained by the express ruling of
the trial Court itself. We accept 2% Aaec verba, the as-
sertion of counsel stated on. page 30 of their brief:
“The Court declared that in its opinion the letrer "om
‘ September 2-tth, 1897, determined the lability of the
parties.” (See trans. p. 64.) “ Meappears; tlenefone
“ that the trial Court did not consider the parol testi-

as

uueny, aaiterial or révevant.”

The Court below by this express and unequivocal
action takeu during the progress of thie trial established

two propositions safe beyond dispute here of either
party to the controversy. Firstly, it thus decided that
the letter of September 24th, 1897, coupled with the
unconditional acceptance thereof by Wells, Fargo & Co.,
constituted the contract between the parties, to the ex-
clusion of all else. Undoubtedly, the Court concluded
that all the rest of the material and relevant evidence
in the transcript simply touched the qnestion of per-
formance under the contract, after having reached the
determination that the writing and its acceptance, con-
stituted such contract. Secondly, it deemed the writing
plain and unambiguous; in itself determining the en-

gagenient assumed by the plaintiff in error.

This ruling of the Court, to our minds, leaves open
for consideration but one basic point. Did the trial

Court err in its construction of this writing?

In our opening, we have fairly presented what we
conceived to be the true and correct meaning of this
writing. Wethen discussed the entire matter under
the argument touching a review of Specifications 1, 2,
3, a, b and c (op. br. pp. 9-28). Having once fully
considered this question in a review of certain assign-
ments, it would have served no useful purpose to have
repeated the argument in a mere formal way, while
dealing with the remaining specifications relating to
the special findings. In the best interests of brevity, it
proved sufficient to direct the attention of this Court
immediately to the one key question which lay at the
entering threshold of the case at bar, knowing well that

the reasoning employed in the one instance would be
properly applied to all other pointed specifications of
error correctly assigned.

But the two reasons advanced by defendant, in order
to uphold the correctness of the rule allowing the ques-
tions propounded to Mr. George E. Gray, as well as the
answers given thereto, cannot prevail, in the light of
the Court’s decision that the writing determined the
lability of the parties.

They urge as the first reason, that “the evidence of
‘““ witness Gray did not alter, or modify, or add to, or
“contradict the letter of September 24th, 1597 aan
‘simply explained the letter, and it was properly ad-
‘““imitted under the rule that parol evidence is adinissible
‘to explain a writing bya refereuce to the circumstances
‘under which it was made” etc. (deft’s. br., pp. 9-13.)
The rule, just stated, is well recognized. But, with
deference, we urge that it has no application in the
present instance. The absolute announcement of the
trial Judge, above mentioned, supports us in our declar-
ation that there was nothing in the writing requiring
any explanation by a reference to previous conversa-
tions between the parties. And it is noteworthy, in no
portion of their brief dealing with this branch of their
case, have counsel indicated any specific part of the let-

ter which the conversation “simply explained”—as they
say. We submit, that the objectionable statement of
Mr. Gray that he told Mr. Baker, “my object was to

“ get the fo/a/ amount of cement we required” instead

of explaining a plain writing, and being consistent with
it, tended [by this proof of circumstances (?) | to add to
and vary it; and, indeed, to substitute a new and differ-
ent engagement inconsistent with the one agreed upon
in the writing itself. And the legal effect of a contract
is as much within the protection of the rule which for-
bids the introduction of parol evidence as is its lan-
guage (Blake Mfe. Co. vs. Jaeger, 81 Mo. App. 239;
Barry vs. Ransom, 2 Kern. (N. Y.) 464.)

Reed vs. Ins. Co., 95 U.S. 28, tendered as an author-
ity on this point, by defendant in error, expressly ap-
proves of the old established doctrine that

“ A written agreement cannot be varied (by addi-
tion or subtraction) by proof of the circumstances

out of which tt grew and which surrounded tts
adoption.”

See also
Empire St. Co. vs. Heller, 61 Fed. 280;
N.Y. Life Ins. Co. vs. McMaster, 87 Fed. 63, 71;
Wrought Iron R. Co. vs. Graham, 80 Fed. 474;
Godkin vs. Monahan, 83 Fed. 116, 119;
Reid vs. Diamond Plate Co., 85 Fed. 193;
Tuggle vs. Callison, 45 8. W. 291;
Minnesota Thresher Co. vs. Grant Co, 81 Mo. App.
259;
Dean vs. Washburn ete. Co., 58 N. E. 162;
Rough vs. Brettung, 75 N. W. 147;
Janes vs. Ferd Heim Bg Co., 44S. W. 896;
Williams vs. Hood, \\1 Wa. Ann. 113;
Barry vs. Ransom, 2 Kern. (N. Y.) 462.
Brite vs. Mt. Atry Mfg. Co., 39 §. E. 634.

They urge as the second reason for admitting the
evidence, ‘because the letter refers to the conversation’”’.
They ask, “Could the trial Court have given the letter
ia

a proper construction without evidence of the conver-
‘sation which the parties had in mind?”

In the first place, adopting the ruling of the Court,
discussed on page 30 of their brief, to the effect that
the letter determined the liability of the parties, it
inevitably follows that the Court did not regard the
previous conversation as material or relevant to the
matter in hand. The Court, apparently, reached its
own interpretation by a process of reasoning based
upon the terms of the writing alone and similar to that
adopted by counsel as set forth at pp. 18-24 of their
brief, aud which will receive, hereafter, proper attention.
In the next place, for the sake of the argument, let us
suppose, as counsel say, that “ when Mr. Baker wrote
“the letter he had in mind his conversation with the
“ witness Gray, and it was his deliberate intention that
“the witness Gray, when reading the letter, should
“have in mind and consider the conversation”. We
fail to comprehend how such a condition can avail
anything in favor of the defendant in error. It would
naturally follow therefrom, that the writer, having in
mind such conversation and considering it,and remind-
ing the other of it, takes pleasure in now submitting
for acceptauce, a specific quotation for as niuch as the
other may require, oz a stated mumber of barrels of

cement, for use ina certain building; uotwithstanding

the previous conversation had, relating to the subject.
Thus, as suggested, such conversation becomes imma-
terial and irrelevant. Or, on the other hand, the
plrase criticised must have been inserted simply to
remind Mr. Gray that the writer, till that afternoon an
utter stranger to him, was the identical person who had
actually conversed with him concerning the cement,
but a short time before the dictation of the letter.

We submit that either or both purposes are the only
ones which can be fairly ascribed to the use of this
introductory phrase; and in any event the couversation

would be deemed immaterial and irrelevant.

But counsel argued strenuously, “that when a writ-
‘‘ ing contained a reference to a conversation as a part of
‘the writing, evidence of the conversation is properly
‘admitted in an action involving the writing” (deft’s.
br. p. 14). They cite in support of this rule four
cases, of which Selig et al. vs. Rehfuss, 45 Atl. 919, is
the exemplar. Neither the rule, nor the cases offered
in support thereof, are applicable to the one before this
Court. We deny that the letter in question contains a

reference to a conversation as a part of the writing.
In Selig vs. Rehfuss, supra, it appears that the letter
began as follows.

‘As per our conversation had with your Mr. Rehfuss
“today, we confirm our order for ten more Pearl

‘ Button Machines,” etc.

Here plainly the parties had entered into a contract

of sale confirmatory of a particular conversation, and
to conform with it. The facts of this case show
that in the conversation, preceeding the letter, tlie
plaintiffs had expressed a fear lest the machines
desired should prove an infringement upon a cer-
tain Cleret patent button machine. Thereupon
Mr. Rehfuss, one of the defendants, told one of
tie plamtitis, “You weed have no fearon
‘that, we will guarantee that is not an infringe-
“ment. We will sell you these machines and we will
“@uarantee them not to be an infringement forme
‘“Cleret patent.” Again, and at the same conversa-
tion, Mr. Rehfuss said, “My dear sir, we are expert
“experimental machinists aud have been in the busi-

“ness a great many years. We know just exactly

‘‘ what we are talking about; and we will guarantee
“ that this is not an infringement of the Cleret patent.
‘“ Tf ever these people bother you, send them to usand
“ we will fight them inthe courts.” ‘The plaintiffs were
sued for damages by the C/eret people on the ground
of an infringement, and the case reported in 45 Alt,
al 979, was a subsequent action brought by Se/zg etal.
to recover from Rehfuss et al. the amount of damages
based upon an express warranty, co//atera/ to the agree-

meut of sale.

In its opinion in the case of Se/z7g vs. Rehfuss, the
Court said in its charge:

“The writing is undoubtedly an order for the
teh eKina waecliines, aud tle mere fact that the

warranty is not written in the paper is not con-
clusive against the plaintiffs. The daw of Pennsyl-
vanta does allow a collateral oral contract to be
proved in the manner in which this has been at-
tempted to be proved by the plaintiffs, so that you
are at liberty to find notwithstanding the fact
that the warranty is not in the paper, that such
warranty was made if you believe from the evi-
dence submitted to you that it was made.”

The excerpt from the Court's charge set forth on
pages 14 and 15 of the brief of defendant in error must
be regarded along with that portion of the charge
which we have taken the pains to insert here, as well
as in connection with the particular facts of that case.
When viewed in this added light it is clearly distin-
guishable from our own case.

The warranty sought to be proved was an independ-
ent contract and collateral to the contract of sale en-
tered into between the parties. An independent and
collateral contract is distinct and separate from the
main contract of sale. It does not purport to vary, or
contradict it. It stands altogether on its own footing.
The principal case of Selig vs. Rehfuss, as is evident
from the opinion, followed a preceding case in Pennsyl-
vania, AYolt vs. Pie, 120 Pa. St. 425. The letter in
the latter case reads:

“Confirming our verbal contract of some days
ago, you will please enter the following order of
good, sound heimlock lumber, etc.”

The Court in that case decided:

“So far as this order and acceptance express
terms, they constitute the contract between the

10

parties. They fixed the amount of lumber to be
furnished, the size into which it is to be cut, the
kind said the price on the ears. But the jorder
referred to a ‘verbal agreement of some days ago’
aud professes to be in confirmation of it. It
does not profess to cite that agreement, or be a
Siistitute for it, but to commit, or conform tome
The offer to prove what that verbal contract was
as to any omitted terms or stipulations was not,
therefore, an effort to change the terms of a written
agreement but to show the whole agreement of
which the letters were but part.

The reason underlying the Pennsylvania decision is
found declared in the case of Schwab vs. Ginkinger,
[ole Pae ot. o, im wiich the Court eld that

‘Where a contract in writing shows upon zts face
that tt 7s not the whole contract between the par-
ties, and does not purport to be a complete agree-
ment, parol evideuce is admissible to show what
was the whole contract and the same then becomes
all parol.”

Anderson e¢ al. vs. National Surety Company, 46 Atl.

306, also a Pennsylvania case, is like the foregoing in

al] respects.

Ruggles vs. Swanwick, 6 Minn. 365, was an action
brought to recover on a promissory note. The defend-
aut interposed the defense of non-delivery and waut of
consideration. ‘lhe Court held:

“Tt may always be shown in defense of an action
on a note in the hands of the original parties, that
it was meéver perfected by delivery, or that ‘there
was no consideration moving between the parties
tosupport it. * * ‘The teérbal testimony im
no way varies, or contradicts the writings. It sim-

Jil

ply furnishes the whole of the transaction of which
the writings form a part and are dependent upon
for their meaning aud just application. It shows
these pretended notes referred to in the writings,
never had etther consideration or delivery to support
them as claims against the defendant, etc.”

Durham vs. Gill, 48 Tl. 154, involves the question of
agency growing out of a writing ambiguous and unin-
telligible but for the parol testimony introduced. The
Court there said:

‘All that we hold is, that the letter in order to
be intelligible at all, and in order to determine what
Durham meant by it, and how it should have been
understood by Gill, must be read and interpreted in
the light of what had already occurred. Read by it-
self, it is incomplete and enigmatical. Durhain
says, ‘The figure we spoke of, 72 and 75, would be
satisfactory to me’. This would be unmeaning, if
the previous conversations between the parties did
not disclose the fact that they had constantly
spoken of two offers to be obtained a
There is no analogy between this and an attempt
to explain a written contract by parol evidence.
An agent may derive his power in part from let-
ters and in part from verbal instructions, and when
a hastily written letter refers to former conversa-
sations and is odscure except for the light thrown
upon it in such conversations upon the same sub-
ject, and the question ts as to the extent of the
agent's authority under zt, it is indispensable that
the jury, in order to accurately judge of the lat-
ter, should know of the extent of the authority
previously conferred and its limitations.”

No such confirmatory reference and no such ques-
tions as those considered in the foregoing cases can be
found involved in the writing, dated September 24th,

12

1897. It is no term or condition of the present con-
tract that the sale is made as fer a conversation or 77
confirmation of it. There is no pretense on the part of
opposing counsel that there existed a collateral and dis-
tinct contract of warranty assumed by the plaintiff in
error. There is no argument advanced based on any
non-delivery or waut of consideration. ‘To hold that
every writing, no matter how plain and unambiguous,
or whiat its subject may be, beginning “referring to the
conversation’’ would open the door to the introduction
of parol testimony, irrespective of the rest of the writ-
ing, is a dangerous doctrine which this Court will not
approve, nor establish. Concerning a similar question,
a sister tribunal in the case of Godk7n vs. Alonahan, re-
ported in 83 Fed. 116, at page 119, declares:

“We recognize the rnle that parol evidence may
be received of the existence of an zxdependent oral
agreement not inconsistent with the stipulation of
the written contract in respect to which the writing
does not speak, but not to vary, qualify or contra-
dict, add to or subtract from the absolute terms of
the written contract. The collateral agreement
which may be proved by parol evidence must relate
to a subject distinct from that to which the written
coutract applies. We believe these principles to be
fully in accord with the rulings of the ultimate
tribunal.” (Here follow 15 citations from U.S. Su-
preme Court.)

Again at page 120 of the same decision, the Court
speaks, referring to Zhe Poconoket case, 10 Fed. 640:

‘The lower Court admitted the evidence upon
the rulings of the Supreme Court of Pennsylvania,
which Court has gone toan extreme tn the admtis-

18

ston of evidence to vary written agreements. ‘The
Court of Appeals approved the decree upon the
strength of those decisions and of certain other
cases cited, notably certain English cases, which
are reviewed and disapproved in Maumberg vs.
Young, supra. ‘The law of a contract at the time
it is made inheres in and becomes a term of the
contract, and, it is settled, cannot be changed by
subsequent legislation. Still less, as it seems to
us, can the law of the contract be changed by parol
negotiations incident to the writing. Such a ver-
bal agreement does not relate to a collateral sub-
ject, to one distinct from that to which the contract
applies, but to that which inheres in, and under
the law, is a term of the contract, and part and
jeameellot it.”

See Jones on Evidence, Secs. 444-5.
Another instructive case on this point is VM. W. fuel
Ga wa7ers, | N. Dak. 137; s. c. 46 N. W.699. The

syllabus states:

“Defendant having written plaintiff asking if it
could furnish defendant coal at same prices and
terms as previous season, if he used about one-half
or two-thirds of amount used the previous season,
and plaintiff having, by letter, in answer to this
inquiry, offered to sell at the price of $3.50 per ton,
and defendant having thereafter, by letter, accepted
the offer, Ze/d, that parol evidence to show that, iu-
termediate plaintiff’s offer and defendant’s accept-
ance, the parties fixed the amount of coal to be de-
livered at the full amount used by defendant the
season before, instead of one-half to two-thirds, as
stated in defendant’s letter, was inadmissible,
because it varied the terms of the written con-
tract.”

The opinion of the Court, per Corliss, C. J. decided:
“The parties, therefore, stood in the position of

14

having drawn, but not signed, a proposed agree-
ment, when the conversation as to the amount of
the coal to be furnished was had. ‘This conversa-
tio was at variance with the terms of this written
but unsigned proposed agreement, and it was the
duty of the defendant to see to it that this parol
change was interpolated into the coutract before
finally assenting toit. This he did not do. He
signed it as it was, by writing the letter of accept-
ance. This accepted an offer to furnish coal ata
certain price, which offer was made on condition
that the amount was to be about one-half to two
thirds of the amount supplied defendant by plain-
tiff the season before. It did not accept an offer to
furnish 951 tons of coal, nor was the contract
silent as to the amount. If, after submission of a
written agreement for approval the parties agree to
change any of the terms of the writing, the change
must be made in the writing, or it will be held toein-
brace the true agreement of the partiess | ineae
tempts to mete out justice in individual cases, so
many distinctions have been made, in order to
escape the force of the doctrine excluding all oral
stipulations not eu:braced in a written contract,
that the proper application of the rule has become
a problem so difficult of solution that the value of
the rule has been seriously impaired. The un-
certainty which has resulted has given rise to
much litigation in which each party has been
sanguine of success because precedents to support
each theory could be found. This isto be deplored,
and it is wise that this Court should at the outset
uphold this principle in its full integrity.”

/n re [foward, 100 Fed. 630;

south boston 1. W.vs. U.S. 38 Ct. Ch Tis:
Shickle vs. Choutcau Co., 10 Mo. App. 242;

Biss DG. Co. vs. Craemile Cay Co. 305. 10 SK:
Lmadlock vs. Com. Immber Co., 3) Pac. 267;

15

Carey vs. Gunnison, 65 Ta. 702;
fland vs. Miller, 68 N. Y. S. 531;
Cook vs. First Nat. Bank, 90 Mich. 214.

We have heretofore addressed ourselves to a question
of practice and rulings arising on the admission or ex-
clusion of testimony. We have done so chiefly because
we deem it our duty to regard separately each argu-
ment of defendant in error. We now propose to re-
view its stand as to the true meaning of the contract

obtained from the writing alone.

In their analysis of the letter counsel start with
error. ‘They apparently discover the essence of the
engagement of William Wolff & Co., in that provision
of the letter which is merely introductory to the deter-
mining words and controlling portions. They assert
that the statement, ‘“We take pleasure in submitting to
“ yon our quotation on Alsen’s German Portland Ce-
“ment for use in the new Wells, Fargo Building, now
“in course of construction’? necessarily embraces—
“not any part or portion of the building but the endzre
“ building”. In this they are plainly mistaken. The
word evt7re does not appear in the original writing.
They must interpolate it or an equivalent to reach the re-
sult contended for. As the sentence stands it covers any
definite quantity of cement, just as pointedly as it covers
cement for the entire building; for the cement would be
actually for use in the new building, whether the
amount engaged to be furnished by William Wolff &
Co., turned ont to be only sufficient for a part of the

16

structure, or for the whole of it.

This method of inserting new terms into the writing
and of excising others therefrom, as well as the obnox-
ious course of excising words from one part and insert-
ing them into another portion of the writing, gives to
it a strained and forced construction, instead of the
plain and natural one to which it is clearly entitled.
The insufficiency of the reasoning as well as the fal-
lacy of the method become obvious immediately if we
subject similar language found in the writing of the
Budge case to such an operation as defendant in error
attempted on page 20 of its brief.

Applying by the same process, tothe Budge case,
the language of Mr. Justice Bradley in the Brawley

case:

“The contract was not for the delivery of any
particular lot, or any particular quantity, but to
deliver all mining timbers required and used by
the party of the second part on the Broadwater
mines lease at Neihart, County of Cascade, and
State of Montana, during the year A. D. 1898,
about 600 mining timbers and about 15,000 lag-
ging.

“These are the determinative words of the con-
tract and the quantity designated, about 600 nnning
tinibers and about 15,000 lagging, 1s to be regarded
inerely as an estimate of what the parties, making
the coutract at the time, supposed nught be re-
quired. ‘The substantial engagement was to fur-
nish sueh an amount of mining timbers and such
an amouut of lagging as should be required by
the party of the second part for use on the Broad-
water Mines Lease at Neihart, County of Cascade,
and State of Montana, during the year A. D. 199077

17

Such words, therefore, as opposing counsel here deem
to be the controlling and determining words of the con-
tract are found used in the writing considered in the
Budge case. If anything, the language employed in
the writing of the latter case is stronger, for it reads:
“all mining timbers required and used by the party of
the second part,’ etc. Yet, the Court certainly did de.
cide that a writing may contain o/her terms which in
themselves would be determining words of the contract,
so as to declare the true engagement of the respective
parties. It follows, as a matter of course, that the mere
use of such words as are emphasized by counsel does
not in every instance define the obligation undertaken.
In the Budge case the Court said:

“The determining words of the contract are the
quantities of timber which are specified in the de-
fendant’s promise to pay aud not the words ‘all
mining timbers required and used’ contained in
the plaintiff’s covenants. The contract was not
one in which the quantity of material to be deliv-
ered rested wholly in the will of him who was to
receive it, nor was it one of those in which the con-
tracting parties had in mind the construction of a
particular work and the supply of the necessary
material therefor, the work itself furnishing to
both parties the ultimate measure of the quantity
which the contract contemplated.”

The Budge case then, is an authority to the point
that parties may mention a particular work in the writ-
ing, aud yet it would not necessarily follow that such
an expression would show conclusively that the parties
had in mind the construction of a particular work and

18

the supply of the necessary material therefor, the work
itself furnishing to both parties the ultimate measure
of the quantity which the contract contemplated. In
certain instances such an expression may be governed
and controlled by other terms of the writing. Each
particular case, it seems, must be decided in the light of
the specific writing to be reviewed, applying the rules of
law enunciated in the authorities. :

Counsel for defendant in error say:

“It is clear, we submit, that the coutract in the case
“at bar falls within this third general rule” [of the
Lrawley case| (deft’s br. p. 20).

In support of the construction given to the letter by
the Court below, manifestly under the application of this
third rule quoted, they then cite several cases. TZhur-
ber vs. Ryan, 12 Kan. 453, refers to a writing contain-
ing determining words of undoubted meaning, alto-
gether absent from the case here; furthermore, it

fails to show, as in this case, a supplemental limitation
within whose extent the acceptor would have the sole

right, freely to name the amount desired. This be-
comes straightway clear upon examination of the con-
tract set forth and discussed in the Kausas decision
(see pp. 457-8).

Pembroke 1. Co. vs. Parsons, 6 Gray 589, is not in
point, as it comes exclusively under the first rule of the
Brawley case. ‘Vhe same may be said of Vavasso Guano
Co. vs. Commercial G. Co., 98 Ga. 92; Day Adm. vs.

19

Cross, 59 Tex. 595; Watts vs. Camors, 115 U. 8. 388,
and Havemeyer vs. Cunningham, 35 Barb. 515.

In Callmeyer et al. vs. The Mayor, 83 N. Y. 116, the
written agreement stated a distinct provision that the

“Period of the contract was for six months, and
the material must be delivered as called for by the
requisitions of the treasurer.” * * *

It was further stipulated

“That the material shall be furnished ‘according
to the sheczficattons and the requirements of the treas-
urer under them; and that payment shall be made
on the certificate of the engineer that the quanti-
ties have been delivered as per requisition and in

accordance with specification’.”

In Harrington vs. The Mayor, 10 Hun. 248,

“By the contract, the plaintiff was to furnish ‘all
the sand aud broken stone, of the quality and
quantity, in the manner and under the conditions
specified’. “ * * It was also provided that if
the plaintiff failed to deliver, the defendant should
have the power to purchase such quantity of ma-
terial as might be necessary to fulfill the contract,
or such part as the engineer might deem necessary.
+ * The defendant extended it [the contract],
and the plaintiff acquiesced.”

In Hackett vs. State, 108 Cal. 144,—the notice to

contractors under which plaintiff’s bid was received

read:

“The whole of the material to be furnished and
work to bedoneas required by the plans and specif
caitons, to which special reference is hereby made.”

The contract provided:
“That the party of the second part hereby cove-

20

nants and agrees with the party of the first part to
furnish the labor and materials, and do the follow-
ing work, to-wit:—Zhe construction of section five
of the seawall and thoroughfare and wharf along
the water-front line of the City and County of San
Francisco, State of California.”

The specifications stated:

“The work to be done under these specifications
consists in furnishing all materials and erecting a
stone embankment, an ear/h embankment, anda
wharf.”

In Yancred, Arvo. & Co. vs. Steel Co. etc., 1o App
Cas. 125, the determining words of the agreement, “to
“supply the whole of the steel required by you,”
plainly state an engagement under which the receivers
of the inaterial were bound to take from the suppliers
named, all the steel required in the construction of a
certain work. Without regard to previous conversa-
tions, the Court declared that the express language of
the writing itself, plainly entitled the Steel Co. to fur-
nish all the steel required in the contemplated and
designated work; and consequently held Tancred, Arrol
& Company to the payment uf damages in favor of the
Steel Company.

The question here is, Does the writing in question,
taken by itself, state an engagement which would have
compelled Wells, Fargo & Co., to receive from Wu.
Wolff & Co., a// of the cement required in the construe-
tion of its new building, in case the price of cement had
fallen? And that, too, even if Wells, Fargo & Co. had,
in good faith, changed the plans aud specifications of

21

the structure, thereby increasing its height or width,
or enlarging it in other respects, so as to use fourfold
or tenfold the amount specifically enumerated. For
the letter, to have the meaning for which opposite coun-
sel contend, this much must be allowed; otherwise there
would be entirely lacking a reciprocity of obligation on
the part of Wells, Fargo & Company. With all defer-
ence, we submit, that the writing now considered, of
itself, did not impose any such burden upon the defend-
ant in error, and that its terms and conditions could
not have entitled the suppliers of this brand of cement
to furnish the whole of the special material required in
the construction of the new building, whether erected
as originally contemplated or, in good faith, altered to
suit the necessities of a rapidly growing business. It
will be remembered that no plans or specifications were
ever exhibited or brought to the notice of any one con-
nected with Win. Wolff & Co.

Upon the oral argument, counsel apologizing for
transgressing the record, suggested to this Court, that
at the trial they stood ready to show that the defendant
in error would have purchased (?) additional cement, ie
prices had fallen, but that the Judge below, upon objec-
tion, ruled against the adimission of any such testimony.
Obviously, such hidden and self-serving mental opera-
tions have no place in evidence. Without further com-
ment in that direction, we simply quote from a recent
opinion rendered by Chief Justice Parker in the Court

of last resort for the State of New York:

‘In the first place, the question did not call for
a fact, but instead for a inere operation of the wit-
ness’ niund, the secret, undisclosed intent of the
witness in the event of the presentation of a situa-
tion calling for action * * * it sought merely
to elicit from him his secret mental operation,
which was safely beyoud contradiction—such evi-
deice is not adniussible.”

ieee vs. Penokee 1. Co., VooN. Y. 371, 380)

We have thus carefully examined and reviewed the
several authorities offered by defendant in error to sus-
faim the construction given to the letter by the Coum
below. They fail to achieve the purpose intended, and
leave this Court to apply the second general rule of the
Brawley case aud the authorities invoked on behalf of
plaintiff in error, to the letter in hand.

We have been charged with entirely iguoring the
expression, ‘‘ for use in the new Wells, Fargo Building

ct ”)

now 111 course of construction,” in the first paragraph
of the letter, and “for what you may require’, in the sec-
ond paragraph (deft’s. br. p. 18). A reference to ouropen-
ing brief fails tosustain theassertion; and, besides, makes
it strikingly clear that by our interpretation some force
and effect is given to every word in the writing with-
out any interpolation or elimination, or any trauspo-
sition of terms from their original and uatural place to

convey a desired meaning.

The interpretation offered by plaiutiff in error stands

as the ove true construction; for it is not at variawee

23

with the collocation of the words used, nor with the
natural arrangement of the respective parts of the
letter, and gives, furthermore, each and every word
purposefully employed its own common = sense
and well settled legal meaning. Construed from this
practical point of view, the introductory part of the
letter tends simply to identify the writer by reference
to an incidental circumstance, not to be deemed an
essential term or condition of the engagement, em-
braced in the quotation which followed in the second
paragraph, or stating provision of the writing.

The stating part alone contains language of contract;
and, therefore, it is, naturally, to be expected that it
would set out the determining words of the agreement.

These, we respectfully submit, granted Wells,
Fargo & Co. the right freely to name the quantity
within the limitation expressly and _ carefully
mentioned. Some meaning must be attached to the
supplemental language, ‘ou about 5000 barrels (5000)
‘‘ more or less,’”’ without doing violence to the writing
taken as a whole. No effect will be given it at all,
unless it be considered in connection with the phrase
immediately preceding, “for what you may require”.
And when so regarded, it unquestionably qualifies a
general and sweeping right; which, otherwise, would
have placed the oue party eutirely within the power of
the other. So long as the limiting term “on” was in-
tentionally inserted in the position where the completed
letter left it, this Court, we submit, will not hold that

“on about five thousand barrels, etce.”, is merely an
estimate of what the parties supposed would be needed,
without bearing upon the engagement undertaken by
the suppliers. We think the writing readily and fairly
comes under the second general rule of the Lrawley
case, aud described an obligation on the part of Win.
Wolff & Company to maintain, as it states, a fixed price
for the cement ov about five thousand barrels. Upon
fulfilling the demands of Wells, Fargo & Co., for de-
liveries up to the speczfed amount, both parties then
occupied an equal position to enter into new and further
engagements respecting the article indicated.

For the foregoing reasons, we respectfully pray a re-
versal of the judgment.
VOGELSANG & BRown,
Attorneys for Plaintiff in Error.